Driving Under the Influence of Intoxicants

ORS 813.140
Chemical test with consent

  • unconscious person

Nothing in ORS 813.100 (Implied consent to breath or blood test), 813.131 (Implied consent to urine test) or 813.132 (Consequences of refusing to take urine test) is intended to preclude the administration of a chemical test described in this section. A police officer may obtain a chemical test of the breath or blood to determine the amount of alcohol in any person’s blood or a test of the person’s blood or urine, or both, to determine the presence of cannabis, psilocybin, a controlled substance or an inhalant in the person as provided in the following:


If, when requested by a police officer, the person expressly consents to such a test.


Notwithstanding subsection (1) of this section, from a person without the person’s consent if:


The police officer has probable cause to believe that the person was driving while under the influence of intoxicants and that evidence of the offense will be found in the person’s blood or urine; and


The person is unconscious or otherwise in a condition rendering the person incapable of expressly consenting to the test or tests requested. [1983 c.338 §593; 1985 c.16 §299; 1999 c.619 §11; 2013 c.642 §2; 2017 c.21 §83; 2019 c.475 §7; 2021 c.253 §9]

Notes of Decisions

Under former similar statute

As an alternative to a breath test, an arresting officer may request the arrested person to submit to a test of his blood, urine or saliva. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

Introduction of a blood sample taken from an unconscious person when the police have probable cause to believe that person was driving under the influence of alcoholic liquor is not made inadmissible by anything in the Implied Consent Law. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

A blood test cannot be compelled over the driver’s refusal. State v. Annen, 12 Or App 203, 504 P2d 1400 (1973), Sup Ct review denied

This section did not preclude introduction into evidence of blood-alcohol test results from a test made by an investigating officer of blood taken by the hospital for treatment purposes, at a time when defendant’s condition was too serious for the investigating officer to interview him. State v. Enoch, 21 Or App 652, 536 P2d 460 (1975)

Though state violated this section in taking defendant’s blood sample without obtaining consent of defendant or showing defendant incapable of consenting, suppression of evidence for such violation was not required where police had probable cause to seize blood and exigent circumstances excused failure to obtain search warrant. State v. Reddish, 78 Or App 219, 715 P2d 495 (1986)

Where blood test was not requested by officer nor test performed at request of officer, this section was inapplicable. State v. Luttrell, 80 Or App 771, 723 P2d 1071 (1986)

In general

Where defendant has been given Miranda warnings and signed consent form to “a search of my person” which advises him that search “may result in criminal charges against me” defendant has expressly consented to blood tests. State v. Davidson, 88 Or App 615, 746 P2d 753 (1987)

Because prosecution for criminally negligent homicide was not prosecution for driving under influence of intoxicants, this section did not require exclusion of blood tests even though they were not obtained according to procedures set out in this section. State v. Milligan, 304 Or 659, 748 P2d 130 (1987)

Absence of reading from breath test on Intoxilyzer checklist is not basis to suppress because its completion or lack of it had no bearing on performance of test or its accuracy as evidence. State v. Hemkin, 102 Or App 79, 792 P2d 483 (1990)

“Expressly consents” means actually consents, therefore consent may be manifested by means other than verbalization. State v. Doran, 133 Or App 698, 893 P2d 569 (1995)


Last accessed
May 26, 2023